Legal
Information on Encounters with Police
Prepared by the Midnight Special Law Collective

It is recommended that when dealing with the police, you keep your
hands in view, don’t make sudden movements, avoid passing behind
them, and don’t touch their equipment. If you touch an officer in
any way, you may be charged with “assaulting an officer”.
When involved
in or observing an interaction with the police, always note what
is said and by whom. Record the officers’ names and badge numbers.
Immediately after the police interaction, fill out a Police Misconduct
Report. Do this as soon as possible, so that you can remember
the details clearly. Familiarize yourself with the Police Misconduct
Report form now so that you always know what to look for and so
that you can give effective testimony when you are a witness. If
you witness police misconduct, you can fill out a Report even if
you do not know the victim personally.

Read this carefully and teach it to your
friends now, before you need it!

Police Encounters
There are three levels of police-initiated encounters. The
second two (which are more serious) require a certain level of proof
before the police can engage in them.

Conversation:
When the police are conducting an investigation, but do not have enough
evidence to detain or arrest us, they will try to engage us in conversation
or get consent to search. They may call this a “casual encounter”
or a “friendly conversation,” etc. If we cooperate, we’re likely
to give them the very facts they need to arrest us. Instead,
we should refuse their request (even though their request may sound
more like an order). Always state your refusal in words, as
opposed to just shaking your head.

Detention: Police are
only allowed to detain you if they have a reasonable suspicion that
you are involved in a crime-that reasonable suspicion must be more
than a mere hunch. The police must be able to put their reasonable
suspicion into words. That is why it’s sometimes called an
“articulable suspicion”. For example, if an officer stops
an individual, it’s not enough for the officer to say, “He looked
like he was up to something.” The officer has to be more specific,
giving details, such as, “He kept looking in the window of
the jewelry store, then walking away, then coming back and peering
into the store again. And he wasn’t from the neighborhood.
He seemed nervous and agitated, so I thought he might be planning
a burglary.”
Ask the officer to explain why you are being detained. Memorize
the officer’s response. The officer may be unable to state a reasonable
suspicion, and that fact could help you win your case later on.
Don’t go telling the cop that s/he doesn’t have reasonable suspicion.
That will just remind him/her to come up with a better story before
writing the report.
Detention is supposed to last only a short time and should not involve
changing location, such as going to the local precinct. Though
not as serious as an arrest, detention still means that you are
not free to leave and are subject to limited search during the brief
time of the encounter.
During a detention, the police are entitled to pat the outer
surface of your clothing and to look into your bags to check for
guns or knives. A detention search is conducted only to assure
that the detainee has no weapon(s) that could endanger an officer.
For example, once the police have patted you and have not felt anything
that could be a weapon, they cannot then examine the contents of
your pockets.

Arrest:When the police
have “probable cause” to believe that you are involved in a crime,
they can arrest you. (They don’t need an arrest warrant as
long as they have probable cause.) Probable cause is more
than a reasonable suspicion, but less than the level of proof required
to convict you at trial. Probable cause varies, according
to the facts of the case. Say, for example, the police received
a call from a store owner that someone had just spraypainted graffiti
on his store. The police drive to the area and notice you
running down the street, about a block from the store, holding a
can of spray paint in your hand. Under these circumstances,
the police would have probable cause to arrest you.
A detention can easily turn into an arrest. Even gently touching
a police officer during a detention can justify arrest for “battery
upon a peace officer.” If the police find a weapon or see
drugs while detaining you, it is likely to provide the probable
cause necessary to arrest you. For instance, the police might
detain you for questioning and then discover a knife while pat searching
you or they might be detaining you to write you a ticket and then
spot an open alcoholic beverage container in your car. When making
an arrest, the police are allowed to search to the skin and to go
through your bag and/or car. An officer searching your body
must be of your own gender.

Questioning
Whenever law enforcement officers ask us anything besides name and
address, it’s legally safest to say these Magic Words: “I am going
to remain silent. I want a lawyer.” These phrases invoke the consitututional
rights which protect you from police interrogation.

Be
aware that the authorities are legally allowed to lie when they’re
investigating, and they are trained to be manipulative. Insist upon
speaking with friends and lawyers before you answer any questions
or produce any documents.

Generally speaking, engaging in dialogue with law enforcement
personnel is appropriate only if we are reporting a crime. If we
find ourselves unexpectedly in a situation which could conceivably
lead to arrest, we must choose our words very carefully. Once
we say the Magic Words, the authorities are supposed to stop questioning
us. If they don’t stop, we just keep repeating the formula
like a mantra.

Remember, anything we say to the authorities can and will
be used against us and our friends in court. There’s no way
to predict what the police might try to use or how they’d use it.
Plus, the police might misquote us or lie altogether about what
was said. So it’s good to make a habit of saying only the
Magic Words and letting everyone know that this is our policy. Make
sure that when you’re arrested with other people, the rest of the
group knows the Magic Words and promises to use them.

The Miranda Warnings
Just because the police didn’t read you your rights doesn’t mean you
can beat your case. Police are only required to read you your
rights if both:

(1) you’re under arrest,
and (2) they want to ask you questions

So if the police ask you questions but haven’t arrested you, they
don’t have to read you your rights and your statements will be used
against you. More important, if the police arrest you and don’t
ask questions, they don’t have to read you your rights; but if you
go ahead and say things to them, your statements will be used against
you.

If you’ve been arrested and realize that you accidentally
started answering questions, don’t panic. As soon as you remember
that you’re supposed to be remaining silent, say the Magic Words:
“I am going to remain silent. I want a lawyer.” Just
because you’ve answered some questions doesn’t mean you have to
answer all of them. Stopping can’t hurt, and it may help.

Things Police may do to
get you to talk

There are a lot of ways the police
will try to trick you into talking. It’s always safest just
to say the Magic Words: “I am going to remain silent. I want
a lawyer.” The following are common lines the police use when
they’re trying to get you to talk:

“You’re not a suspect. We’re simply investigating
here. Just help us understand what happened and then you can
go.”

“If you don’t answer my questions, I won’t have any choice but
to take you to jail.”

“Your friends have all cooperated and we let them go home.
You’re the only one left. Do you want to go to jail?”

“If you don’t answer these questions, you’ll be charged with
resisting arrest.”

Good-Cop, Bad-Cop Routine: Don’t get taken in by a
“good cop” just because s/he is someone of your own race or gender.

Rat Jacket Routine: Don’t believe police who insist
that your buddy has snitched you off ? never roll over on her/him.
The police will often be telling your buddy that you’re a snitch
in the hope that each of you will snitch off the other.

George Washington Routine: The police will claim that
they have all the evidence they need to convict you, and your best
bet is to “take responsibility” and confess right away. They’ll
argue that if you confess promptly, the judge will be impressed
and go easier on you. When the police say they have all the
evidence they need, what they really mean is: We don’t have enough
evidence yet, and that’s why we need you to confess.

If you are arrested with friends, make an agreement that no one
will make statements to the police until everyone’s been able to
talk to a lawyer and calmly decide what to do. Be aware of
the paranoia which tends to set in after people have been separated.

Be particularly suspicious if you are in custody and an officer
(or an unfamiliar person claiming to be a lawyer) comes and tells
you that everyone else has agreed to a particular deal or to leave
jail. Demand to see a trusted lawyer or another person you
trust to verify this information.

When you’re in jail, don’t talk to your cell-mates about what happened
to you, who was with you or even whom you know. Stick to safe
topics such as movies, music, sports, sex, etc.

Above all, do not ask for or accept legal advice from the officers
who have stopped you. They are not there to act as your advocates.
Remember that they’ve been trained to put you at ease, to get you
to trust them. Their job is to find, arrest and help convict
the suspect. And that suspect is you.

Searches and Warrants

If police come to the door with an arrest warrant, step outside
and lock the door. Police are allowed to search any room you
go into, so don’t go back into your home to get your wallet or use
the bathroom. If they do have an arrest warrant, hiding inside
isn’t likely to help, because police are allowed to force their
way in if they believe you are there. So you might as well go, without
letting them in to search.
Do not consent when the police ask to enter and search your
home without a search warrant. Don’t let them invite themselves
in. Stand in the doorway and refuse to give them permission:

Cop: Mind if I come in?
You: I do not consent to your entering.

The police are quite likely to tell you they don’t need a warrant.
It’s always safest to reply: “I do not consent to this search.”
This statement cannot harm you, and it will be helpful in court
if the police are wrong or lying. If the police tell you they’re
coming in anyway, make sure to say, “I do not consent to this search.”
If police say they do have a search warrant, ask them to give it
to you so you can read it to see that it’s signed and has your correct
address and a reasonably recent date (not more than a couple of
weeks). If you point out a flaw in a warrant, the police may
ask you to let them in anyway. Just say no. (The police
may threaten to tear your home apart if they have to go back and
get another warrant, but the search will be destructive anyway,
even if you let the police in immediately.) Whether or not
the police have a warrant which looks perfectly okay to you, it
still makes sense to say “I do not consent to this search,” because
it’s possible that there’s a hidden flaw in the warrant which your
lawyer may be able to find later on.
Do not physically resist the police when refusing consent
because you’re likely to get hurt and charged with resisting or
assaulting an officer. If the police insist on coming in after
you’ve refused consent, stand aside and let them through the door-but
remind them that you still don’t consent to the search.
Saying “I do not consent” may seem a little formal, but it
helps keep the police from claiming that they thought you gave them
permission. Many cases have been lost because the suspect
was too polite or intimidated to refuse consent clearly. For
example, if you said, “I’d rather you didn’t search,” it could be
argued that you were reluctantly allowing them to proceed.

Sample Conversations With Law
Enforcement

1.
Cop: “Can I ask you a couple of questions?”
You: “Are you detaining me or am I free to go?”
Cop: “No, I’m not detaining you, I just want to talk to you.”
You: “I don’t choose to talk to you.” (If you are free to
go, you may walk away.)
Remain silent.

Cop: “You’re not going anywhere. Hands against the wall,
feet back and spread ‘em.”
You: “Can you explain why I’m being detained?”
>> Memorize the officer’s response. Don’t go telling the cop that
s/he doesn’t have reasonable suspicion. That will just remind
him/her to come up with a better story before writing the report.

(3) Cop: “You’re under arrest.”
You: “I am going to remain silent. I want a lawyer.”
>> Do not wait for the police to read you your rights.
They may not do it (and they’re not required to unless they want
to question you). Once you say that you don’t want to answer
questions or that you want a lawyer, the police are not allowed
to question you. However, the police do get to ask your name,
address and to see valid picture identification. It is illegal
to give them false information, but you may remain silent. You will
have to give your name eventually to get out of jail.

(4) Cop: “Can I look in your backpack (purse, pockets, wallet,
glove compartment)?”
You: “No. I do not consent to a search.”
>> Saying “I do not consent” may seem a little formal, but it helps
keep the police from claiming that they thought you gave them permission.